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Jacobson v. Dep't of the Army Board for Correction of Military Records

September 9, 2008


The opinion of the court was delivered by: Gregory G. Hollows U. S. Magistrate Judge


Plaintiff, proceeding in this action pro se, has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This case is referred to this court pursuant to E. D. Cal. L. R. 72-302(c)(21) and 28 U.S.C. § 636(b)(1).

Plaintiff has submitted an affidavit and additional information making the showing required by 28 U.S.C. § 1915(a)(1). Accordingly, the request to proceed in forma pauperis will be granted.

The determination that plaintiff may proceed in forma pauperis does not complete the required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at any time if it determines the allegation of poverty is untrue, or the action is frivolous or malicious, seeks monetary relief against an immune defendant, or fails to state a claim on which relief may be granted (see also Fed. R. Civ. P. 12(b)(6)). Additional grounds for dismissing a proposed complaint are improper form (Fed. R. Civ. P. 8(a) and 10(b)), and lack of subject matter jurisdiction (Fed. R. Civ. P. 12(b)(1).

"A party invoking the federal court's jurisdiction has the burden of proving the actual existence of subject matter jurisdiction." Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996). A federal court is a court of limited jurisdiction, and may adjudicate only those cases authorized by the Constitution and by Congress. See Kokkonen v. Guardian Life Ins. Co, 511 U.S. 375, 377, 114 S.Ct. 1673, 1675 (1994). Lack of subject matter jurisdiction may be raised at any time by either party or by the court. See Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).

While the pleadings of pro se litigants are construed liberally, Abassi v. I.N.S., 305 F.3d 1028, 1032 (9th Cir. 2002), pro se litigants are expected to comply with procedural rules, McNeil v. United States, 508 U.S. 106, 113 (1993), American Ass'n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107-1108 (9th Cir. 2000).

Plaintiff, who is 78 years of age, seeks an order of this court directing the U.S. Department of the Army, Board for Correction of Military Records ("ABCMR"), to issue him a "Purple Heart" based on plaintiff's 1950 Army service in the Korean War during which plaintiff allegedly sustained shrapnel wounds to his back and chest wall while engaged in hostile action.*fn1

The Board describes the following requirements for receiving a Purple Heart:

"Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action. Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by a medical officer, and the medical treatment must have been made a matter of official record." Record of Proceedings, Sept. 13, 2007, at p. 3.

Plaintiff enlisted in the Regular Army on July 24, 1950 for a period of three years; he was released from active duty on September 29, 1953 with an undesirable discharge. Record of Proceedings, Aug. 17, 2006, at p. 2. Plaintiff describes the underlying facts as follows (Complaint, at pp. 1-2):

I was a soldier during the Korean War. In a firefight, a mortar round exploded behind me on the right side of my back. I also took shrapnel in my leg that I pulled out be hand. At first opportunity I went to the battalion and station and told the doctor there what had happened. He gave my back a quick look and said there was nothing wrong with me.

In 2003 I was in the Sutter Roseville, CA. Hospital for elective surgery and x-rays were taken that show shrapnel in my chest wall. I obtained those x-rays, made copies, and sent the copies, along with an explanation of what happened in Korea, to the ABCMR and asked it to change my records and issue me the Purple Heart for the wound. The Board has refused to do so and has forced me into the court for justice.

Plaintiff has submitted the following documentation demonstrating compliance with administrative procedures for obtaining the requested correction of his records:

1) January 11, 2008 x-ray report of plaintiff's abdomen by "Northern California HCS" (ordered by Dr. Michael Ashcraft), demonstrating in pertinent part a "Metallic fragment identified near the right chest wall, adjacent to the right 7th rib, likely shrapnel;" confirmed ...

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